Case 6:20-cv-00636-ADA Document 100 Filed 04/12/21 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`DEMARAY LLC,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD (A
`KOREAN COMPANY), SAMSUNG
`ELECTRONICS AMERICA, INC.,
`SAMSUNG SEMICONDUCTOR, INC.,
`and SAMSUNG AUSTIN
`SEMICONDUCTOR, LLC,
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`Defendants.
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`Case No. 6:20-cv-00636-ADA
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`JURY TRIAL DEMANDED
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`PUBLIC VERSION
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`PLAINTIFF DEMARAY LLC’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO
`FILE SUR-REPLY TO SAMSUNG’S MOTION TO TRANSFER VENUE
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`10928625
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`Case 6:20-cv-00636-ADA Document 100 Filed 04/12/21 Page 2 of 5
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`Samsung’s response to Demaray’s motion for leave to file a sur-reply confirms that
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`Samsung cannot show that NDCA is a “clearly more convenient” forum. The primary issue in
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`this case is Samsung’s use of infringing PVD reactor configurations in development and
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`production of semiconductor products. Samsung concedes that “accused reactors are
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`manufactured in Texas and that Samsung Austin uses the reactors in Texas.” Resp. 1. While
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`Samsung argues that the “location of any alleged infringement … does not equate to the location
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`of relevant witnesses and evidence” (id.), the configured reactors themselves are indisputably
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`present in this District. See XY, LLC v. Trans Ova Genetics, LC, No. W-16-CA-00447-RP, 2017
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`WL 5505340, at *14 (W.D. Tex. Apr. 5, 2017) (“documents and physical evidence relating to
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`Defendant’s alleged infringing activities are located in Texas”) (emphasis added)). In addition,
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`Applied manufactures its PVD chambers here
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` Unlike Samsung,
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`Demaray has tethered its arguments to concrete, relevant facts that favor this forum.
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`Samsung on the other hand focuses on legally flawed and unpled defenses, contested
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`facts, and a laundry list of questionable witnesses. These have, at best, tangential ties to the
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`primary issues in this case. For example, Samsung dredges up 15 “witnesses,” but most are listed
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`as relevant to Samsung’s licensing defense based upon demonstrably unlawful assignment
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`provisions or speculative inequitable conduct defenses. See Resp. 2 (citing Ou Ex. AW).
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`Samsung’s self-serving list does not even mention Samsung’s infringement—the primary
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`issue in the case. See id. Samsung then compounds its error by arguing that Demaray must
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`“substantiate why the individuals … are not likely witnesses” (Resp. 3), but Samsung cannot
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`Case 6:20-cv-00636-ADA Document 100 Filed 04/12/21 Page 3 of 5
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`meet its burden by simply listing a bunch of former Symmorphix and AKTA employees. Simply
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`put, Samsung’s reliance on speculative defenses, evidence and witnesses forecloses transfer. See
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`Fintiv, Inc. v. Apple Inc., No. 6:18-cv-00372-ADA, 2019 WL 4743678, at *2 (W.D. Tex. Sept.
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`13, 2019) (“A court … must draw all reasonable inferences and resolve all factual conflicts in
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`favor of the non-moving party.”) (internal quotations omitted)). And even if considered,
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`Demaray has demonstrated (1) the speculative nature of Samsung’s defenses1 and (2) that the
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`only living signatory and primary negotiator for either party to the SRA on which Samsung
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`hinges its transfer request lives in North Carolina (closer to this district). Ou Ex. AL (Marcucci
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`Dep. II), 487:25–488:9.
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`Demaray’s sur-reply properly points out the errors of fact and law included in Samsung’s
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`reply and addresses the 24 new exhibits and new witness declaration Samsung submitted
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`therewith. For example, Demaray identified more essential licensing witnesses outside of
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`NDCA for whom a Texas forum would be more convenient. Dkt. 91-1 (Sur-Reply) 3 (identifying
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`Bob Conner and Howard Neff as primary negotiators). As another example, Samsung raised a
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`new argument that an Applied employee, John Forster, has “unique knowledge regarding
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`Applied’s prior art … system.” Reply 1. Demaray merely provided responsive evidence showing
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`that other Applied Austin personnel also likely have knowledge of such systems and that
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`Advanced Energy personnel at its headquarters likely have knowledge of other prior art
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`1 Samsung admits no inequitable conduct claim has been pleaded. Dkt. 88 (Reply) 2–3.
`As for its licensing/ownership claims, Samsung’s theory that the SRA “stands on its own” (id., 5)
`was not alleged in its operative answer. See Dkt. 29 ¶¶ 107 (“the Sale and Relationship
`Agreement … explains that it applies ‘[t]o the extent required by existing [Applied Komatsu]
`Employee Agreements with any Symmorphix personnel.”), 100 (similar). Those employee
`agreements have been declared void as unlawful. See Dkt. 50 (Opp.) 15.
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`Case 6:20-cv-00636-ADA Document 100 Filed 04/12/21 Page 4 of 5
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`systems.2 Sur-Reply 3–4.
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`Given the speculative nature of Samsung’s transfer “evidence,” it is unsurprising that it
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`wants it to go to the Court unchallenged, but fairness dictates that Demaray be allowed to
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`respond to Samsung’s one-sided presentation on venue. Accordingly, Demaray respectfully
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`requests that the Court consider its sur-reply.
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`Dated: April 5, 2021
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`/s/ C. Maclain Wells
`C. Maclain Wells
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`Richard D. Milvenan
`State Bar No. 14171800
`Travis C. Barton
`State Bar No. 00790276
`MCGINNIS LOCHRIDGE LLP
`600 Congress Ave., Suite 2100
`Austin, Texas 78701
`Telephone: (512) 495-6005
`Facsimile: (512) 505-6305
`rmilvenan@mcginnislaw.com
`tcbarton@mcginnislaw.com
`Morgan Chu (pro hac vice)
`Benjamin W. Hattenbach (pro hac vice)
`Annita Zhong (pro hac vice)
`C. Maclain Wells (pro hac vice)
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`mchu@irell.com
`bhattenbach@irell.com
`azhong@irell.com
`mwells@irell.com
`Darish Huynh (pro hac vice)
`
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`2 Samsung attempts to dismiss the relevance of these individuals (Resp. 4). But the
`evidence contradicts Samsung’s insistence that all Applied development work occurs in NDCA.
`Samsung also mischaracterizes Applied reactors as being “configured” at Applied’s headquarters
`(id.),
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`Case 6:20-cv-00636-ADA Document 100 Filed 04/12/21 Page 5 of 5
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`IRELL & MANELLA LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`dhuynh@irell.com
`Attorneys for Demaray LLC
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`CERTIFICATE OF SERVICE
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`A true and correct copy of the foregoing instrument and its attachments were served
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`electronically via email upon all counsel of record on this 5th day of April, 2021.
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`By: /s/ C. Maclain Wells
`C. Maclain Wells
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